FOX v. SUPERIOR COURT OF CREEK COUNTY

FOX v. SUPERIOR COURT OF CREEK COUNTY
1961 OK 291
368 P.2d 484
Case Number: 39704
Decided: 12/19/1961

Supreme Court of Oklahoma

Arliss Fox, Steve Osborne and James A. Harrell, Petitioner,
v.
The Superior Court of Creek County, Oklahoma, Drumright Division, and The Honorable G.B. (Chuck) Coryell, the Judge thereof, Respondents.

Syllabus by the Court

¶0 1. Title 12 O.S.1951 Supp., Section 131, which provides that actions for damages to land must be brought in the county where the land is situated is not in derogation of Article IX, Sec. 43, which provides that suits may be maintained against a foreign corporation where an agent of such corporation may be found, or in the county of the residence of the plaintiff, or in the county where the cause of action arose.

2. Where an action is brought in Creek County for damages to land in Jackson County, the court of Creek County does not have venue of the subject matter and is without jurisdiction to render a valid and binding judgment.

3. Where the primary action is local, the joining with it an ancillary action which is transitory in nature, does not change the main or primary action to a transitory action.

4. Prohibition is a proper remedy to prevent a court from trying a case of which it lacks jurisdiction because venue is in another county.

Original application in this court by Atchison, Topeka and Santa Fe Railway Company for the issuance of a writ prohibiting the respondents, the Superior Court of Creek County and the judge thereof, from exercising jurisdiction in an action pending in said court against the applicant, for the reason that venue does not lie in the Superior Court of Creek County. Writ granted.

Yates & Braddock, Altus, for petitioners Arliss Fox and Steve Osborne.
Oden & Oden, Altus, for petitioner James A. Harrell.
Doyle Watson, Drumright, Wheeler & Wheeler, Tulsa, for respondents.

IRWIN, Justice.

¶1 The Petitioners, Arliss Fox, Steve Osborne and James A. Harrell, were co- defendants of Atchison, Topeka and Santa Fe Railway Company, a foreign corporation, in an action brought in the Superior Court of Creek County, the same being case No. 3698. The plaintiffs in that action, L. H. McConnell and Kate McConnell, commenced proceedings in the Superior Court of Creek County against all the defendants for damages to land situated in Jackson County, and injunctive relief.

¶2 All of the defendants in Case No. 3698, in the Superior Court of Creek County filed their separate Special Appearances, Motions to Quash Summons and Pleas to the venue and jurisdiction of the Superior Court of Creek County. There pleas were overruled.

¶3 Defendant, Atchison, Topeka and Santa Fe Railway Company, petitioned this Court in case No. 39,703, to assume original jurisdiction and issue a Writ of Prohibition to the Superior Court of Creek County and the Judge thereof, from further exercising jurisdiction over it in case No. 3698, Superior Court of Creek County.

¶4 Defendants, Fox, Osborne and Harrell petitioned this Court in the present proceeding to assume original jurisdiction and issue a Writ of Prohibition to the Superior Court of Creek County and the Judge thereof, from further exercising jurisdiction over them in case No. 3698, Superior Court of Creek County.

¶5 In the case of the Atchison, Topeka, and Santa Fe Railway Company v. Superior Court of Creek County, Drumright Division, Okl.Sup., 368 P.2d 475, on this date decided, this Court issued a Writ of Prohibition prohibiting the Superior Court of Creek County, for the reason venue of such action does not lie in Creek County.

¶6 We adopt the facts and rule of law as set forth in the above case which are applicable in the case at bar and hold that a Writ of Prohibition should issue prohibiting the Superior Court of Creek County and the Judge thereof, from further exercising jurisdiction over petitioners in Case No. 3698, Superior Court of Creek County, for the reason venue of such action does not lie in Creek County.

Writ granted.